IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.Nos.43523/2018 & 57829 – 57830/2018 (KLR – RR/SUR) BETWEEN :
1. B.M.VIJAYKUMAR S/O LATE MAHADEVAPPA, AGED 55 YEARS.
2. KALLAPPA B.M., S/O LATE MAHADEVAPPA, AGED 58 YEARS.
3. YUVARAJAPPA B.M., S/O LATE MAHADEVAPPA, AGED 48 YEARS.
ALL ARE R/AT BUSSENAHALLI VILLAGE, KASABA HOBLI, CHANNAGIRI TALUK DAVANAGERE DISTRICT-577213 ...PETITIONERS (BY SRI SHIVANANDA D.S., ADV.) AND :
1. THE STATE OF KARNATAKA REP BY ITS SECRETARY, DEPARTMENT OF REVENUE, M.S.BUILDING, BENGALURU-560001 2. THE DEPUTY COMMISSIONER DAVANAGERE DISTRICT, DAVANAGERE-577213 3. DEPUTY DIRECTOR OF LAND RECORDS AND TECHNICAL ASSISTANT TO SURVEY SETTLEMENT, DAVANAGERE-577213 4. THE ASST. DIRECTOR OF LAND RECORDS CHANNAGIRI TALUK CHANNAGIRI-577213 5. THE TAHSILDAR CHANNAGIRI TALUK DAVANAGERE DISTRICT-577213 6. THE TALUKA SURVEYOR CHANNAGIRI TALUK CHANNAGIRI-577213 7. SUBHADRAMMA W/O LATE RUDRAPPA, AGE 65 YEARS.
8. D.B.NAGARAJ S/O BASAPPA, AGE 46 YEARS.
9. SHIVALINGAPPA K.B., S/O LATE KARIBASAPPA, AGE 57 YEARS.
10. RANGANATHAPPA K.B., S/O LATE KARIBASAPPA, AGE 52 YEARS.
11. K.M.HALESH S/O LATE MUTTAPPA @ CHIKKTHIMMAPPA AGE 48 YEARS.
12. THIPPESH B.V., S/O LATE B.V.VEERAPPA, AGE 42 YEARS.
13. BASAVARAJAPPA B.V., S/O LATE B.V.VEERAPPA, AGE 46 YEARS.
14. SHIVALINGAPPA B.V., S/O LATE B.V.VEERAPPA, AGE 40 YEARS.
15. B.H.BASAVARAJAPPA S/O LATE BASAPPA, AGE 48 YEARS.
16. VEDAMURTHI B.H., S/O LATE BASAPPA, AGE 52 YEARS.
17. B.H.RUDRAPPA S/O LATE BASAPPA, AGE 55 YEARS.
18. S.NAGARAJ S/O LATE SHIVALINGAPPA, AGE 65 YEARS.
19. D.S.MALLESHAPPA S/O LATE SIDDAPPA, AGE 50 YEARS.
20. D.MAHARUDRAPPA S/O LATE SIDDAPPA, AGE 55 YEARS.
21. D.S.SHIVAKUMAR S/O LATE SIDDAPPA, AGE 53 YEARS.
22. D.S.SIDDARAMAPPA S/O LATE SIDDAPPA, AGE 63 YEARS.
ALL ARE R/AT BUSSENAHALLI VILLAGE, KASABA HOBLI, CHANNAGIRI TALUK DAVANAGERE DISTRICT-577213 …RESPONDENTS (BY SRI VENKATESH H. DODDERI, AGA FOR R-1 TO R-6.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ENDORSEMENT DATED 20.03.2018 ISSUED BY R-4 AT ANENX-Q AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners have challenged the endorsement dated 20.3.2018 issued by the respondent No.4 inter alia seeking a direction to the respondent Nos.1 to 6 to hold survey/conduct the phodi by fixing the boundaries as per the mutation register as well as RTC’s in respect of the land measuring 4 guntas, 10¼ guntas and 2¼ guntas respectively which is part of the Sy.No.90/6, 3 acres 18 guntas (exclusive of 3 guntas as kharab) situated at Bussenahalli village, Kasaba Hobli, Channagiri Taluk, Davanagere District.
2. Pursuant to the orders passed by the respondent No.4, the Tahsildar-respondent No.5 has conducted the spot inspection and found that, there is difference between the possession of the land by the grantees and the pahani measurements, adjacent portion of the lands to which phodi is claimed, is constructed with houses by other pahani holders. Hence, practically it is not possible to make phodi dhurasthi/prepare survey sketch since the matter is civil in nature, the same requires to be resolved before the competent Civil Court. An endorsement has been issued to the said effect. Hence, this writ petition.
3. The main ground of challenge is that, the Civil Court has no power to hold or conduct the survey under the provisions of the Karnataka Land Revenue Act, 1964. The 3rd respondent specifically directed the 4th respondent to hold survey or conduct the phodi according to the possession and extent of the land held by the parties as per the revenue records. Hence, the endorsement impugned is contrary to the order of the 3rd respondent.
4. The said arguments requires to be negated for the reason that the respondent No.4 on acting upon the directions issued by the 3rd respondent, on conducting the spot inspection, noticed that the houses are constructed in the adjacent portion of the subject lands and there is much difference between the possession and the measurement found in the pahani; the actual possession is less than the measurement found in the revenue records.
5. In the circumstances, respondent No.4 issuing the endorsement impugned, directing the parties to resolve the dispute before the appropriate Civil Court cannot be held to be unjustifiable or unsustainable. Unless the revenue documents co-relates with the actual measurements of the land in possession, phodi dhurasthi could not be conducted. The encroachment if any made by the other pahani holders or the portion to which the petitioners are entitled for phodi dhurasthi, can be adjudicated only by holding a full fledged trial. Revenue authorities are not empowered to decide the same.
Hence the writ petitions are bereft of merit and stand dismissed with liberty to the petitioners to resort to appropriate proceedings in accordance with law.
Dvr:
Sd/- JUDGE